ATTORNEYS:On
behalf of the plaintiff-appellant, the cause was submitted on the briefs of
Thomas C. Wilkoski of Law Offices of Lucas & Wilkoski of West
Allis.

Respondent

ATTORNEYS:On
behalf of the defendants-respondents, the cause was submitted on the brief of
James E. Doyle, attorney general, and Stephen M. Sobota,
assistant attorney general..

COURT OF APPEALS

DECISION

DATED AND FILED

October 18, 2000

Cornelia G. Clark

Clerk, Court of Appeals

of Wisconsin

2000 WI App 244

NOTICE

This opinion is subject to further
editing. If published, the official version will appear in the bound volume of
the Official Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

No.00-0855

STATE OF WISCONSININ
COURT OF APPEALS

Gary
J. White,

Plaintiff-Appellant,

v.

Labor
and Industry Review Commission, Olympic

Wall
Systems, Inc. and Transportation Insurance

Co.,

Defendants-Respondents.

APPEAL
from a judgment of the circuit court for Racine County:RICHARD
J. KREUL, Judge.Affirmed.

Before
Brown, P.J., Nettesheim and Anderson, JJ.

¶1NETTESHEIM, J.The
principal issue in this worker’s compensation case is whether the first clause
of Wis. Stat. § 102.01(2)(g)2
(1997-98)[1]
relieves an employee of the burden to prove that an occupational disease
stemmed from the employment with the employer against whom the claim is
made.The Labor and Industry Review
Commission (LIRC) determined that the statute required the claimant, Gary J.
White, to establish such linkage between his occupational back disease and his
employment with Olympic Wall Systems, Inc. (Olympic).LIRC further held that the evidence submitted by White did not
satisfy this burden.

¶2White’s primary argument is that LIRC misapplied Wis. Stat. § 102.01(2)(g)2 which
sets out how the time, occurrence or date of an injury is determined.White contends that since he was still
employed by Olympic, he was required under the first scenario of this statute
to prove only that he had an occupational disease and the date of his
disability.He argues that LIRC erred
by applying the second scenario of the statute which fixes the date of
disability at “the last day of work for the last employer whose employment
caused disability.”Id.Alternatively, White argues that even if
LIRC correctly applied the statute, he met his burden of proof to show that his
employment at Olympic contributed to his disability based on a medical report
submitted by his treating physician.

¶3We reject White’s argument that he was not required to
establish a connection between his disability and his employment with Olympic
under the first scenario of the statute.We further uphold LIRC’s conclusion that the medical report offered by
White failed to establish such a connection.Consequently, we affirm the judgment of the circuit court.

FACTS

¶4The underlying facts are undisputed.White is a drywaller by trade whose work
experience dates back to 1966.Beginning in 1982, White worked exclusively as a drywaller.During this time, White worked for many
different employers, receiving his work assignments through his union.At the hearing before the administrative law
judge (ALJ), White testified that depending upon the type of job, he would be
working with sheets of drywall that weighed anywhere from 80 to more than 100
pounds.According to White, this heavy
work contributed to recurring back problems.

¶5White testified that his history of back problems began in
the late 1960’s.While he worked as a
drywaller, he would experience flare-ups in his back about twice a year that
would require him to miss one or two weeks of work each time.The only documented incident involving
White’s back was an October 1991 injury that occurred while he was working for
another company.On that occasion,
White aggravated his back while carrying sheets of drywall and he was unable to
work for two months.He was treated
with medication and received physical therapy.As a result, White received temporary total disability worker’s compensation.

¶6White was employed by Olympic for a total of thirty weeks
during 1994 and 1995.His compensation
claim against Olympic initially arose out of an unrelated matter—a shoulder
injury he suffered on the job on August 17, 1995.He was treated conservatively for this injury with medication and
therapy and was placed under lifting restrictions.During the fall of 1995, White tried, but was unable, to return
to normal duty with Olympic.White’s
last day of work for Olympic was November 4, 1995.White was awarded worker’s compensation benefits based on a three
percent loss of use of his shoulder.

¶7White returned to his treating physician on January 15, 1996,
and reported that his shoulder was feeling much better.He asked to be released to full duty because
the lifting restrictions prevented him from returning to his normal drywalling
work.At that time, White’s physician
reported that White had full range of motion and good strength in his
shoulder.As a result, White was
cleared to return to normal duty on January 22, 1996.White, however, never resumed working for Olympic.

¶8Almost a year later, on January 9, 1997, White had his
shoulder examined by Dr. Harvey Kohn.Based on this examination, Kohn estimated White’s shoulder disability at
twenty percent.As a result, White
sought additional benefits for his shoulder disability.Later, White modified his application to
include the claim at issue in this case—an alleged occupational back
disease.The application requested
temporary total disability from December 25, 1995, to July 29, 1997, and an
eight percent permanent partial disability for his back.White’s claim for his back condition was
based on a further examination by Dr. Stephen Delahunt conducted on April 10,
1997.

¶9Following a hearing, the ALJ issued a written decision
grantingWhite’s claim for additional
benefits related to his shoulder injury.[2]In addition, the ALJ rejected White’s
occupational back disease claim based on White’s failure to maintain his burden
of proof.Specifically, the ALJ noted
that White had a history of back problems that went back many years and that
Delahunt’s report “does not give the opinion that the employment at [Olympic]
changed or affected [White’s] back problem.”

¶10White appealed the ALJ’s decision regarding his occupational
back disease claim to LIRC.LIRC upheld
the ALJ’s decision and adopted his findings and order as its own.In addition, by a memorandum opinion, LIRC
cited the failure of Delahunt’s report to opine that White’s employment with
Olympic “constituted a materially contributory causative factor in the onset or
progression of the alleged occupational back disease.”

¶11White followed with an appeal of LIRC’s decision to the circuit
court.After reviewing the record and
briefs submitted by the parties, the court issued an order affirming LIRC’s
decision.The court agreed with LIRC’s
reading of Wis. Stat. §
102.01(2)(g)2 that White had the burden of proving through medical evidence
that his employment with Olympic contributed to his occupational back
disease.In addition, the court upheld
the LIRC determination that Delahunt’s report failed to satisfy this burden.White further appeals to this court.

STANDARD OF REVIEW

¶12On appeal, we review the decision of LIRC rather than the
decision of the circuit court.See Stafford
Trucking, Inc. v. DILHR, 102 Wis. 2d 256, 260, 306 N.W.2d 79 (Ct. App.
1981).Our role is not to weigh the
evidence or to determine the credibility of the witnesses, and as such, we will
uphold LIRC’s findings of fact so long as they are supported by credible and
substantial evidence in the record.See
Langhus v. LIRC, 206 Wis. 2d 494, 501, 557 N.W.2d 450 (Ct. App.
1996); Wis Stat. §
102.23(6).In the case before us, the
facts are not in dispute.

¶13After the facts are established, we turn to their application
to the statute, which is a question of law.See Minuteman, Inc. v. Alexander, 147 Wis. 2d 842, 853,
434 N.W.2d 773 (1989).Depending on the
level of expertise an agency has acquired in the area in question, we may defer
to its legal determination.See Barron
Elec. Coop. v. PSC, 212 Wis. 2d 752, 760-64, 569 N.W.2d 726 (Ct. App.
1997).Our supreme court has identified
three levels of deference to agency decisions:great weight deference, due weight deference and de novo review.See UFE Inc. v. LIRC, 201 Wis.
2d 274, 284, 548 N.W.2d 57 (1996).Which level is appropriate “depends on the comparative institutional
capabilities and qualifications of the court and the administrative
agency.”Id. (citation
omitted).Due weight deference is
appropriate “when the agency has some experience in an area, but has not
developed the expertise which necessarily places it in a better position to
make judgments regarding the interpretation of the statute than a court.”Id. at 286.

¶14In this case, both parties agree that due weight deference is
appropriate here.We will accept that
agreement for purposes of this case.Thus, we will sustain LIRC’s interpretation of the statutes if it is
reasonable—even if another interpretation is equally reasonable—but will
overrule it if another interpretation is more reasonable.See Barron Elec. Coop., 212
Wis. 2d at 762-63.

(g) Except as
provided in s. 102.555 … “time of injury”, “occurrence of injury”, or “date of
injury” means:

….

2.In the case of
disease, the date of disability or, if that date occurs after the cessation of
all employment that contributed to the disability, the last day of work for the
last employer whose employment caused disability.

¶16White observes that in North River Insurance Co. v.
Manpower Temporary Services, 212 Wis. 2d 63, 568 N.W.2d 15 (Ct. App.
1997), this court stated that Wis. Stat.
§ 102.01(2)(g)2
envisions “two scenarios for measuring the ‘time of injury’ for an occupational
disease:(1) the date of disability; or
(2) if the date of disability occurs after the cessation of all employment that
contributed to the disability, the date when the employee last worked for the
employer who caused the disability.”North
River, 212 Wis. 2d at 71.Regarding the second scenario, we observed:

[T]his scenario envisions that the employee is no longer
engaged in the employment which contributed to the disability.While this language does not require that
the employee must no longer be employed, it does require that the employee is
no longer engaged in that contributing employment.Second, if that condition exists, then the
employer which caused the disability is the responsible party and the
last day worked for that employer is the date of disability.

Id. (footnote omitted).

¶17White says that LIRC erroneously analyzed this case under the
second scenario of Wis. Stat. § 102.01(2)(g)2
because his employment with Olympic had not ceased.Thus, he reasons that LIRC should not have inquired as to “the
last employer whose employment caused disability” under this portion of the
statute.Instead, White says that this
case falls under the first scenario of the statute.And since that scenario speaks only of “disease” and “the date of
disability,” White argues that he was not required to show any connection
between his disability and his employment with Olympic.

¶18Implicit in White’s argument is his assumption that Wis. Stat.
§ 102.01(2)(g)2
represents a comprehensive statement as to a claimant’s burden of proof.We reject that assumption.The statute is entitled “Definitions” and it
sets out the meanings of various terms that appear thereafter in the worker’s
compensation laws.As such, the statute
does not purport to globally recite the elements of a worker’s compensation
claim or the corresponding burden of proof. Rather, the statute simply sets out
a mechanism for fixing the time, occurrence or date of an injury for
purposes of identifying the proper employer against whom a claim may be made.

¶19That was the very matter at issue in North River
where the former employer and the most recent employer contended that the other
was responsible for the employee’s occupational disease.See North River, 212 Wis. 2d
at 65.Speaking to the second scenario
of Wis. Stat. § 102.01(2)(g)2,
we concluded that the employee’s disability did not occur “after the cessation
of all employment that contributed to the disability.”North River, 212 Wis. 2d at
72.In light of that, we further said,
“This is a requirement which must be satisfied before we look to whether the
employer on the last day of work caused the disability.”Id.From this language, White extrapolates that we were saying just
the opposite—that causation need not be proven—under the first scenario of the
statute.As further support, White
notes that the first scenario language of the statute speaks only of “disease”
and “date of disability” and not of employment which contributed to or caused
the disability.

¶20We disagree with White’s approach for two reasons.First, North River itself
implicitly rejects it.Having
determined that the second scenario of Wis.
Stat. § 102.01(2)(g)2
did not apply because the disability did not occur “after the cessation of all
employment that contributed to the disability,” North River,212
Wis. 2d at 72, we nonetheless went on to assess whether the evidence supported
the LIRC determination that the employee’s latest employment was a substantial
factor contributing to the disability.Seeid. at 73.If, as White
contends, such linkage between the disability and the employment was not
required, we would not have conducted that inquiry.

¶21Second, and more importantly, White’s argument runs counter to
some fundamental notions about worker’s compensation law.We start with the burden of proof:

It is an
elementary principle of law that the applicant has the burden of proof in a
workmen’s compensation case, and if the evidence before the Industrial
Commission is sufficient to raise in the mind of the commission a legitimate
doubt as to the existence of facts necessary and essential to establish a
claim for compensation, it becomes the duty of the commission to deny the
application on the ground that the claimant did not sustain his [or her] burden
of proof.

¶22In determining the elements of a viable worker’s compensation
claim to which this burden applies, we look to Wis. Stat. § 102.03, entitled “Conditions of liability.”Subsection 1 provides for employer liability
for worker’s compensation benefits:

(a) Where the
employe sustains an injury.

(b) Where, at
the time of the injury, both the employer and employe are subject to the
provisions of this chapter.

(c) 1. Where,
at the time of the injury, the employe is performing service growing out of and
incidental to his or her employment.

….

(e) Where the accident or disease causing injury arises
out of the employe’s employment.(Emphasis added.)

¶23White would have us read this causation element out of worker’s
compensation law where the claim is for an occupational disease under the first
scenario envisioned by Wis. Stat. § 102.01(2)(g)2.We see no basis for such a drastic departure
from established law.Again, the
statute merely prescribes a mechanism for identifying the responsible
employer.It does not abrogate the condition
of liability set out in Wis. Stat. § 102.03(1)(e)
that a claimant must prove that the accident or disease arose out of that
employment.

¶24That brings us to White’s alternative argument that even if he
was required to prove the linkage between his occupational disease and his
employment with Olympic, he has satisfied that burden.Here, the medical report of Delahunt is
crucial because it represents the only evidence proffered by White in support
of his claim that his employment with Olympic contributed to his back disease.
In his report, Delahunt recited White’s medical history and his observations
from his examination of White.Delahunt
concluded that White has “advanced degeneration of the L5-S1 intervertebral
disc” and that “[d]ue to the intractability and severity of his symptoms”
surgery would be appropriate.This
portion of the report clearly establishes White’s occupational back disease,
and LIRC does not dispute this point.

¶25The portion of Delahunt’s report that purports to establish the
causal link between White’s occupational back disease and his employment with
Olympic reads as follows:

His current back disability
appears to be related to his long work exposure as a drywaller.The symptomatology initially did appear
while he was at work.It is my opinion
that because of the prolonged exposure to the heavy work of a drywaller that he
has this current low back disability.

¶26White argues that these statements satisfied his causation
burden because he had worked for Olympic for at least eight months prior to his
last day of employment.He reasons that
“[t]his eight months of employment with Olympic had to contribute to
[his] disease.”(Emphasis added.)But that is not what the report says;
instead, that is White’s interpretation of the report.LIRC held that Delahunt’s report is
deficient because it does not specifically tie White’s occupational back
disease to his employment with Olympic.Or, at best, it is ambiguous on this question.We agree.As we have noted,
evidence is insufficient if it raises in the mind of LIRC a legitimate doubt as
to the existence of a fact necessary and essential to establish a claim for
compensation.SeeBumpas,
95 Wis. 2d at 342-43.Stated
differently, but to the same effect, a worker’s compensation award may not be
based upon findings that are mere possibilities or speculation.SeeFranckowiak v. Industrial
Comm’n, 12 Wis. 2d 85, 90, 106 N.W.2d 51 (1960).Here, the ambiguity in Delahunt’s report
allows for a “legitimate doubt” on the question of causation.Any award on the basis of this report would
have constituted a possibility or speculation.Under such conditions, it was LIRC’s duty to dismiss White’s worker’s
compensation claim.SeeBumpas,
95 Wis. 2d at 342-43.

CONCLUSION

¶27We hold that the first scenario of Wis. Stat. § 102.01(2)(g)2
does not eliminate the need for proof that the accident or disease arose
out of the employee’s employment pursuant to Wis.
Stat. § 102.03(1)(e).We further
hold that LIRC’s determination that Delahunt’s report failed to satisfy White’s
burden of proof as to causation was reasonable.

By the Court.—Judgment
affirmed.

[1] All
references to the Wisconsin Statutes are to the 1997-98 version unless
otherwise noted.

[2] This award,
however, was less than that sought by White, and White does not appeal this
lesser award.